Neidhardt: The Federalist View of Right-to-Work Laws
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
5/13/15 11:42 AM
THE FEDERALIST VIEW OF RIGHT-TO-WORK LAWS
ANDREW W. NEIDHARDT*
INTRODUCTION ........................................................................................................................................... 251
I. THE VISION OF THE FEDERALISTS REQUIRES ORGANIZED, REASONED
DISCUSSION .................................................................................................................................... 252
A. The Federalist Papers Advocate a Republican Government Influenced by
the Popular Will ........................................................................................................................ 252
B. The Federalists Recognized That Various Groups Should Be Represented .............................. 256
C. The Founders Desired the Use of Reason in Political Debates, Which
Requires an Organized Society ................................................................................................. 259
II. A STRATEGY FOR ACHIEVING THE THREE FEDERALIST GOALS .............................................. 262
A. Large Representative Groups Are Necessary Today to Represent the
Interests of the American People .............................................................................................. 262
B. Labor Unions Are a Means for Representation of the Working Class in
America, and Right-to-Work Laws Reduce Their Effectiveness .............................................. 267
1. Labor Unions Provide a Means of Representation............................................................. 267
2. The Effect of Right-to-Work Laws .................................................................................... 271
3. Labor Unions Work to Achieve Political Representation for Their
Members ............................................................................................................................. 274
4. Labor Unions Provide a Voice to Those Who Would Otherwise Not
Participate in Government.................................................................................................. 276
5. Counterarguments: Are Labor Unions Really the Answer to the
Federalist Vision?............................................................................................................... 276
III. CONCLUSION ......................................................................................................................................... 280
INTRODUCTION
The authors of the Federalist Papers (whom I will call “The Federalists,” collectively)
sought a republican government that balanced stability and popular control. These two ideas are
in constant tension, as the passions of the people fluctuate and their attention moves from issue to
issue. The Federalists also wanted a government that would operate on reason and rationality
rather than simple passions. America today is considerably more complicated and diverse than it
* J.D., New York University School of Law 2014. The author is currently a law clerk in the Alaska Superior Court for the
Third Judicial District. The author would like to thank the editors of the University of Pennsylvania Journal of Law and
Social Change for their thoughtful comments, as well as his peers at the New York University Review of Law and Social
Change for their assistance in the writing process.
Published by Penn Law: Legal Scholarship Repository, 2015
1
University of Pennsylvania Journal of Law and Social Change, Vol. 18, Iss. 3 [2015], Art. 2
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
252
UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE
5/13/15 11:42 AM
[Vol. 18.3
was in the era of the Federalists. We face more challenges than ever before in building a system
that represents the people and achieves the Federalists’ vision of an enlightened, reasoned
government.
In this Article, I discuss the need for representative organizations to channel the
“cacophonous voices” of the people. In order for the voice of the people to be heard in today’s
government, it is necessary that low-income Americans band together to pool their collective
strength. Poor Americans face the largest impediments to political participation, and they
participate less frequently in politics than other groups.
I use labor unions as an example of a collective group of citizens, and show that they
have the ability to create this kind of large-scale organization and representation. Labor unions
can be the voices of millions of Americans who otherwise have little say in government. By
pooling their resources, American workers who are represented by unions are able to delegate to
representatives who can go and be their voice—and a voice of reason. Rather than relying on
emotional appeals to American workers, labor union leaders can become policy experts on the
complicated issues that our government faces. This falls directly in line with the Federalist vision
of government by reason.
But these groups are under attack by “right-to-work” laws, which make it difficult for
labor unions to organize. In right-to-work states, unionization is markedly lower, meaning that the
working class has one fewer method of organizing to gain political representation. Comparing this
with the relative ease with which business interests can organize, we must worry about whether
we are achieving the Federalist goal of diverse representation in our government.
Part I of this Article outlines and discusses the Federalists’ vision that our nation’s
politics be organized, reasoned, and diverse. Part II discusses how labor unions promote this goal
and how right-to-work laws undermine the Federalist vision.
I. THE VISION OF THE FEDERALISTS REQUIRES ORGANIZED,
REASONED DISCUSSION
A. The Federalist Papers Advocate a Republican Government Influenced by the Popular Will
The Federalists sought to design a government that would lay a foundation for a stable
and lasting nation.1 They recognized that government is necessary to overcome the Hobbesian
state of nature, which is to say that government can provide stability in a world that is constantly
changing.2 The tumultuous years of the Articles of Confederation left the Federalists with a strong
sense that a government needs to be both stable and effective.3 By establishing a lasting
government, the Federalists were creating a framework that would allow individuals to think
1
T H E F E D E R A L I S T N O . 37, at 223 (James Madison) (Clinton Rossiter ed., 2003) (“Stability in
government is essential to national character and to the advantages annexed to it, as well as to that repose and confidence
in the minds of the people, which are among the chief blessings of civil society.”).
2
See id.; cf. VINCENT OSTROM, THE POLITICAL THEORY OF A COMPOUND REPUBLIC: DESIGNING THE
AMERICAN EXPERIMENT 52 (2d ed. 1987) (describing the Hobbesian state of unorganized warfare as a war of “every man,
against every man”).
3
See THE FEDERALIST NO. 37, supra note 1, at 222-23; MORTON WHITE, PHILOSOPHY, THE FEDERALIST,
CONSTITUTION 224 (1987) (noting that Hamilton “emerges in The Federalist as a more ardent champion of
governmental energy and efficiency than of the people’s natural rights”).
AND THE
http://scholarship.law.upenn.edu/jlasc/vol18/iss3/2
2
Neidhardt: The Federalist View of Right-to-Work Laws
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
2015]
5/13/15 11:42 AM
THE FEDERALIST VIEW OF RIGHT-TO-WORK LAWS
253
beyond their basic and immediate needs. Government would allow individuals to plan for the
future and rely on the fruits of their labor.4
Take, as a cognitive example, the idea that nobody washes a rental car.5 In the view of an
economist, when an individual can get away with inaction (that is, when she can export the cost to
another person), she will always do so. By the same logic, nobody builds a home in a lawless
society when they lack the personal resources to defend it. Nobody invests the time and money to
make anything of value when it can be easily stolen. In such a society, individuals could rationally
choose to export the cost of production onto others by stealing what is valuable. Taken to its
logical conclusion, individuals would produce very little in this type of society. This is part of the
Hobbesian state of nature.6
But in a society with laws and a powerful government to enforce them, individuals can
be confident that their individual investments will be preserved. They can rest assured that there is
a relatively low risk that their day’s work will be stolen—and, if it is stolen, that there will be
some opportunity for compensation. Theft is but one source of the need for a strong government.
The Federalists’ vision of a stable society goes beyond simple theft prevention. The
Federalists were concerned with the threat of popular insurrections.7 Perhaps because they had
just led a popular insurrection, or perhaps because they were wealthy property-owners, the
Federalists feared an angry mob that could take property by force.8 The Federalists also feared
that such a mob could take action in a republic without resorting to force; the Federalists
recognized that the ballot box was just as powerful as the pitchfork.9 This mob mentality was the
epitome of the evils of pure democratization—the prime danger of giving power to the popular
will.
This fear is most famously expressed in Federalist No. 10, in which James Madison
explains the fundamental dangers of majority tyranny.10 Madison was concerned that confiscatory
tax programs implemented by the mob would take from the rich and give to the poor in order to
equalize the two groups.11 Today, this fear seems less relevant, considering the lack of such
drastic action despite the vastly increased ability of the mob to participate in elections12 (but that
4
See J. Michael Martinez & William D. Richardson, The Federalist Papers and Legal Interpretation, 45
S.D. L. REV. 307, 327 (2000).
5
Thomas L. Friedman, Out of Touch,
http://www.nytimes.com/2011/02/11/opinion/11friedman.html.
Out
of
Time,
N.Y.
TIMES,
(Feb.
10,
2011),
6
See generally THOMAS HOBBES, LEVIATHAN (A.P. Martinich & Brian Battiste, eds., Broadview Press rev.
ed. 2011) (1651).
7
See, e.g., T H E F E D E R A L I S T N O . 9, at 66 (Alexander Hamilton) (Clinton Rossiter ed., 2003); THE
FEDERALIST NO. 16, at 108 (Alexander Hamilton) (Clinton Rossiter ed., 2003).
8
See T H E F E D E R A L I S T N O . 9, supra note 7; THE FEDERALIST NO. 16, supra note 7; STEVEN H. JAFFE,
WHO WERE THE FOUNDING FATHERS? TWO HUNDRED YEARS OF REINVENTING AMERICAN HISTORY 87 (1996).
9
See T H E F E D E R A L I S T N O . 10, at 72 (James Madison) (Clinton Rossiter ed., 2003) (warning against
the “common impulse of passion” found in factions); T H E F E D E R A L I S T N O . 15, at 106 (Alexander Hamilton)
(Clinton Rossiter ed., 2003) (“[T]he passions of men will not conform to the dictates of reason and justice without
constraint.”).
10
See generally T H E F E D E R A L I S T N O . 10, supra note 9.
11
See id. at 74.
Published by Penn Law: Legal Scholarship Repository, 2015
3
University of Pennsylvania Journal of Law and Social Change, Vol. 18, Iss. 3 [2015], Art. 2
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
254
UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE
5/13/15 11:42 AM
[Vol. 18.3
is a topic for another article). But the theoretical argument made by the Federalists is still
relevant: a government of the people rightly fears that groups with greater political representation
will trample upon the rights of political minorities.
The Federalists sought to protect society from popular insurrections by delegitimizing
rebellion.13 The Federalist view seeks to push individuals to seek change primarily through
nonviolent means. The Federalists also recognized a fundamental truth about human nature: we
are more dangerous in groups.14 Groups supply us with the comfort that others agree with us.
Agreement is empowering, and it emboldens the members of the group.
American government, by and large, seeks to individualize.15 We do not bring criminal
prosecutions against groups.16 Hauling the individual to stand before the power of the State
reminds that individual that he does not have the sole authority to decide what is best. The State,
in its collective capacity, represents the people. In the case of a rebellion, the individual’s
appearance in court, separate from his co-rebels, sears into his mind that he is individually
responsible for his own actions. The individual will not be in any way protected by the safety of
the group’s agreement.
The process of individualization need not apply to one human being. A local government
could blindly act in self-interest as easily as a mob.17 On various occasions, the Federalists
propose that in a strong union, the states will be able to suppress the insurrection of one or two
who choose to rebel.18 This reflects their expectation that even states would sometimes be caught
up in the passions of the moment.
12
Progressive taxation is one example of wealth transfer, but a major wealth transfer has not been effected
in a way that substantially reduces income inequality, which is higher than it has been in a century. Connie Stewart,
Income Gap between Rich and Poor Is Biggest in a Century, L.A. TIMES, (Sept. 11, 2013),
http://www.latimes.com/nation/nationnow/la-na-nn-income-inequality-20130910,0,5392493.story.
13
See T H E F E D E R A L I S T N O . 15, supra note 9, at 106 (“Regard to reputation has a less active influence
when the infamy of a bad action is to be divided among a number than when it is to fall singly upon one.”).
14
See id.
15
See OSTROM, supra note 2, at 105 (“[N]o person can be a fit judge of his or her own cause in relation to
the interest of others. Each person stands exposed to the actions and judgments of others; and each from an individual
vantage point participates in the government of society.”).
16
There are several notable exceptions. Pinkerton liability for conspiracy is one area in which an individual
can be punished for the crimes of the group. Pinkerton v. United States, 328 U.S. 640, 646-47 (1946). Another example is
products liability, in which a manufacturer may be liable for its share of the market, regardless of actual wrongdoing. See,
e.g., Sindell v. Abbott Laboratories, 607 P.2d 924, 936-38 (1980). But these are exceptions to the general rule that every
individual’s actions will be judged independently. Allison Marston Danner & Jenny S. Martinez, Guilty Associations:
Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 Cal. L. Rev.
75, 82-83 (2005) (explaining that “[t]he most important [philosophical commitment of national criminal justice systems] is
the focus on individual wrongdoing,” and explaining the move away from collective guilt); Joel Feinberg, Collective
Responsibility, 65 J. PHILOSOPHY 674, 676 (1968) (describing vicarious criminal liability as “barbarous” if the actor acted
independently).
17
See T H E F E D E R A L I S T N O . 15, supra note 9, at 107 (“All this will be done; and in a spirit of
interested and suspicious scrutiny, without that knowledge of national circumstances and reasons of state, which is
essential to a right judgment, and with that strong predilection in favor of local objects, which can hardly fail to mislead
the decision.”).
18
OSTROM, supra note 2, at 117-18.
http://scholarship.law.upenn.edu/jlasc/vol18/iss3/2
4
Neidhardt: The Federalist View of Right-to-Work Laws
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
2015]
5/13/15 11:42 AM
THE FEDERALIST VIEW OF RIGHT-TO-WORK LAWS
255
The government’s promotion of stability, however, was meant to do more than simply
suppress rabble-rousers. Stability, as a goal, is meant to provide a framework for cooperation, not
just authority. Cooperation will make the nation stronger, and it is required of a republican
government in which the people are the last line of defense.19 Cooperation is especially necessary
in a large nation, made up of states that frequently disagree. This idea is even more relevant in
today’s diverse society, as I will discuss below.
The people are in the best position to serve as a check on federal power. Although the
Federalists designed the Constitution to be self-limiting through checks and balances, they
recognized that the system could not be perfect.20 So, as a last resort, the Federalists wanted the
people to be the final check. Their voice was an important failsafe to prevent tyranny by the
government.21 If the government is truly falling into corruption or some other vice, at least there
will be some person who can alert the people to take action. This is an example of “alarm-bell
constitutionalism,” a theory that comes up at various times throughout the Federalist Papers.22
But the Federalists were also realistic in recognizing that an individual could never be
powerful enough to lead an insurrection against a tyrannical government. In fact, they recognized
that the people generally preferred to fight amongst themselves rather than achieve a collective
goal. The Federalists explicitly avoided rule by popular assemblies because they recognized that
such assemblies have a hard time agreeing on anything.23
Instead, the people must be led to an effective government.24 Popular participation in
government (either at the front-end through the ballot box or as a final check on a tyrannical
government) could only happen if the people are organized. In other words, the Federalists
believed that the people could not rule themselves, and that they would not want to anyway. But
that does not mean the people are impotent. On the contrary, they recognized that the people have
the greatest power of all: they can riot and use mass force to achieve their desired ends.25 The use
of force by the masses would pose the greatest threat to government of all, because it threatens
government’s preference for stability.
The Federalists needed to avoid such popular insurrections against legitimate
19
T H E F E D E R A L I S T N O . 31, at 193 (Alexander Hamilton) (Clinton Rossiter ed., 2003) (“Everything
beyond this must be left to the prudence and firmness of the people; who, as they will hold the scales in their own hands, it
is to be hoped will always take care to preserve the constitutional equilibrium . . . .”).
20
T H E F E D E R A L I S T N O . 85, at 522-23 (Alexander Hamilton) (Clinton Rossiter ed., 2003).
21
T H E F E D E R A L I S T N O . 31, supra note 19, at 193.
22
See, e.g., THE FEDERALIST NO. 9, supra note 7, at 69; T H E F E D E R A L I S T N O . 25, at 159 (Alexander
Hamilton) (Clinton Rossiter ed., 2003); T H E F E D E R A L I S T N O . 26, at 167-68 (Alexander Hamilton) (Clinton Rossiter
ed., 2003); T H E F E D E R A L I S T N O . 44, at 282 (James Madison) (Clinton Rossiter ed., 2003); T H E F E D E R A L I S T
N O . 84, at 516 (Alexander Hamilton) (Clinton Rossiter ed., 2003).
23
T H E F E D E R A L I S T N O . 15, supra note 9, at 107 (“Those who have been conversant in the
proceedings of popular assemblies; who have seen how difficult it often is, when there is no exterior pressure of
circumstances, to bring them to harmonious resolutions on important points, will readily conceive how impossible it must
be . . . .”); see RICHARD BEEMAN, P L A I N , H O N E S T M E N : T H E M A K I N G O F T H E A M E R I C A N
C O N S T I T U T I O N 2 8 - 2 9 (2009) (discussing Madison’s distrust of government which serves solely popular interests).
24
See T H E F E D E R A L I S T N O . 28 (Alexander Hamilton) (arguing that the people will resort to rebellion
and force if government is not strong enough to suppress rebellion).
25
Id.
Published by Penn Law: Legal Scholarship Repository, 2015
5
University of Pennsylvania Journal of Law and Social Change, Vol. 18, Iss. 3 [2015], Art. 2
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
256
5/13/15 11:42 AM
UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE
[Vol. 18.3
government.26 They were acutely aware of the citizenry’s power to rise up and overthrow a
government. In fact, they stated that one of the “principal purposes to be answered by union” was
to preserve the public peace.27 They did not want America to look like Holland, which suffered
from “popular convulsions.”28 The Federalists believed that preventing class division was an
impractical goal; they saw that there would always be elites in society.29 Instead, they adopted an
anti-utopian worldview: they realized that government cannot prevent conflict among groups, but
it can provide a means for settling those conflicts amicably.30
Society needs laws, which allow individuals to settle their differences, and it needs a
powerful government to enforce those settlements. Such is the basic Hobbesian purpose of
government: it removes the need for citizens to resort to destabilizing self-help remedies (such as
rebellion). The Federalists were concerned with preventing the need for rebellion at all. The
government must be strong enough to show a great deal of force. Only this show of force would
truly eliminate the risk of rebellion.31 This is in tension with the more pervasive notion in the
Federalist Papers that the popular will should be what governs the nation.
B. The Federalists Recognized That Various Groups Should Be Represented
Despite the Federalists’ insistence that the “popular will” be a driving force in the
republic, they also sought to avoid the dominance of self-interested passion.32 These two concepts
are in tension. How do you listen to the voice of the people when they are rational, yet ignore
them when they are not? The Federalists accepted this problem by recognizing that those who
control government will consistently seek to defend their own interests.33 Politics is, at its most
basic level, an assertion of passion and interest,34 which can arise easily from self-interest to cloud
one’s judgment.35 From such a selfish perspective, politicians sometimes find evidence with rose26
See id.
27
T H E F E D E R A L I S T N O . 23, at 149 (Alexander Hamilton) (Clinton Rossiter ed., 2003).
28
T H E F E D E R A L I S T N O . 20, at 133 (James Madison & Alexander Hamilton) (Clinton Rossiter ed.,
2003).
29
T H E F E D E R A L I S T N O . 10, supra note 9, at 73 (“From the protection of different and unequal
faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the
influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different
interests and parties.”); Murray Dry, The Debate Over Ratification of the Constitution, in A COMPANION TO THE
AMERICAN REVOLUTION 482, 487 (Jack P. Greene & J.R. Pole, eds., 2000) (“Hamilton said inequality was inevitable if
individual liberty was secured (Madison says the same in The Federalist, no. 10) . . . .”).
30
See, e.g., T H E F E D E R A L I S T N O . 7 (Alexander Hamilton) (listing potential conflicts and ways the
government can provide a forum for their resolution).
31
THE F E D E R A L I S T N O . 28, at 174 (Alexander Hamilton) (Clinton Rossiter ed., 2003).
32
T H E F E D E R A L I S T N O . 1, at 27 (Alexander Hamilton) (Clinton Rossiter ed., 2003) (“Happy will it be
if our choice should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations
not connected with the public good.”).
33
Id. (“But this is a thing more ardently to be wished than seriously to be expected.”).
34
The Federalists use “passion” to refer to uncontrollable emotions, and “interest” to refer to cool,
deliberate self-interest. See WHITE, supra note 3, at 106-109.
35
T H E F E D E R A L I S T N O . 63, at 382 (James Madison) (Clinton Rossiter ed., 2003) (noting that
http://scholarship.law.upenn.edu/jlasc/vol18/iss3/2
6
Neidhardt: The Federalist View of Right-to-Work Laws
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
2015]
5/13/15 11:42 AM
THE FEDERALIST VIEW OF RIGHT-TO-WORK LAWS
257
colored glasses in support of a self-serving policy without seriously examining its wide-reaching
effects. Yet at the same time, the Federalists believed that there must be a better way to run a
country.
The Federalists wanted to devise a procedure that would prevent the use of passion and
illegitimate arguments made with the purpose of advancing individual interest.36 To use political
theorist James Harrington’s example, they wanted one child to cut the cake and the other child to
decide which slice she gets.37 The Founders sought a government that reflexively represented
opposing sides.38 This is emblematic of the Federalists’ theme: that it is possible to design the
structure of government so that it systematically, automatically achieves better governance.
The Federalists believed strongly that our nation was a particular sort of experiment39:
they saw America as a common project.40 Each constituent part of the country has something to
add to its goals. Of course, this falls directly in line with a political ideology that focuses on broad
cooperation. The Federalists believed that if we all work together, we can accomplish more than
we ever could on our own.41 Working together allows people to pool resources and divide labor,
resulting in increased efficiency. Cooperation in a republic requires the participation of divergent
interests in the governing process.42 This cooperation can be accomplished by the representation
of various groups in government.43
“irregular passion or illicit advantage” can lead to adoption of unwise policies).
36
S e e T H E F E D E R A L I S T N O . 1, supra note 32, at 29 (“[A] dangerous ambition more often lurks
behind the specious mask of zeal for the rights of the people, than under the forbidding appearance of zeal for the firmness
and efficiency of government.”). This point appears repeatedly, including in a defense of the Senate’s design:
As the cool and deliberate sense of the community ought, in all governments, and actually will, in
all free governments, ultimately prevail over the views of its rulers; so there are particular moments
in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or
misled by the artful misrepresentations of interested men, may call for measures which they
themselves will afterwards be the most ready to lament and condemn.
T H E F E D E R A L I S T N O . 63, supra note 35.
37
See JAMES HARRINGTON, T H E O C E A N A A N D O T H E R W O R K S O F J A M E S H A R R I N G T O N 44
(London, 1771), available at http://lf-oll.s3.amazonaws.com/titles/916/0050_Bk.pdf.
38
This is evident in the concept of separation of powers. See OSTROM, supra note 2, at 142-43, 165.
39
Cf. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (discussing the
potential for a state to serve as a “laboratory”).
40
See, e.g., T H E F E D E R A L I S T N O . 11, at 84 (Alexander Hamilton) (Clinton Rossiter ed., 2003)
(referring to the construction of a navy, “different portions of confederated America possess each some peculiar advantage
for this essential establishment”).
41
T H E F E D E R A L I S T N O . 12, at 90 (Alexander Hamilton) (Clinton Rossiter ed., 2003).
42
See T H E F E D E R A L I S T N O . 5, at 45 (John Jay) (Clinton Rossiter ed., 2003); F E D E R A L I S T N O . 15,
supra note 9, at 106-107; T H E F E D E R A L I S T N O . 36, at 213 (Alexander Hamilton) (Clinton Rossiter ed., 2003)
(describing the “natural operation of the different interests and views of the various classes of the community”); T H E
F E D E R A L I S T N O . 51, at 320 (James Madison) (Clinton Rossiter ed., 2003) (“Different interests necessarily exist in
different classes of citizens.”).
43
See C.H. HOEBEKE, T H E R O A D T O M A S S D E M O C R A C Y : O R I G I N A L I N T E N T A N D T H E
S E V E N T E E N T H A M E N D M E N T , 28 (1995) (“It defied ‘Reason’ and ‘the Laws of Nature’ that one citizen or group of
citizens should have a greater voice politically than any of the others.”).
Published by Penn Law: Legal Scholarship Repository, 2015
7
University of Pennsylvania Journal of Law and Social Change, Vol. 18, Iss. 3 [2015], Art. 2
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
258
5/13/15 11:42 AM
UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE
[Vol. 18.3
This can also be seen in a more cynical way: any government needs a certain degree of
support from its people. For example, if a general does not have the support of her army, it will
desert her. A government needs to please its constituents or the underrepresented portions rebel.44
To avoid this problem, the Federalists sought to include members of different societal classes in
government.45 Thus, they crafted the House of Representatives in a way that they believed would
represent the different “classes” or “trades” of society (indirectly).46
The Federalists also wanted the door to the legislature to be open to anyone.47 Of course
they limited this proposition to one house of the legislature,48 but the principle remains: every part
of society has something to contribute to this common project, and it should be represented in our
national government. This egalitarian principle is tempered by the opposing conceptual theme that
we must prevent government from being a raw reflection of the shifting emotions of the people.49
In addition to the government’s structure, the Federalists realized that politicians have a
personal incentive to learn the interests of their constituents.50 Politicians’ jobs will depend on
their ability to effectively represent their constituents’ interests.51 So it naturally follows that
politicians will work their hardest to learn more about their constituents, on whom they depend
for subsistence.52 Politicians will want to serve as a conduit for the local information, which is
most beneficial to their constituents.
But the Federalists were not content to stop there. They put a safeguard in place for the
representation of society’s interests: federalism. The advantage of having two governments is
simple: if one government does not fully represent your views, you can change your allegiance to
the other government.53 This structure allows the people to organize when it becomes necessary to
44
See id. at 28-30 (explaining the tension between representing all groups and attaining social harmony
without conflict). Hoebeke describes the “central dilemma” of the Federalist Papers as “secur[ing] the public good and
private rights against the dangers of such a faction, and at the same time. . . preserv[ing] the spirit and the form of popular
government.” Id. at 30 (quoting THE FEDERALIST NO. 10, supra note 9, at 75).
45
T H E F E D E R A L I S T N O . 35, at 210-211 (Alexander Hamilton) (Clinton Rossiter ed., 2003).
46
The Federalists did not believe that each class could literally be represented in the House of
Representatives. Rather, they believed that those who were elected would serve as proxies for the interests of each class.
See id. For example, artisans and manufacturers would be willing to vote for a merchant, who would represent the needs of
the commercial class. Id. (noting that while actual representation by every class is “visionary,” certain classes would
sufficiently represent the interests of others); OSTROM, supra note 2, at 99-100.
47
THE F E D E R A L I S T N O . 36, supra note 42, at 213 (“The door ought to be equally open to all . . . .”);
OSTROM, supra note 2, at 100.
48
U . S . C O N S T . art. 1, § 3 (election of Senators by state legislatures), amended by U . S . C O N S T .
amend. XVII.
49
See supra Part I.A.
50
THE F E D E R A L I S T N O . 35, supra note 45, at 212 (“Is it not natural that a man who is a candidate for
the favor of the people . . . should take care to inform himself of their dispositions and inclinations and should be willing
to allow them their proper degree of influence upon his conduct?”).
51
Id.
52
THE FEDERALIST NO. 35, supra note 45, at 212 (noting that representatives will want to learn about the
“dispositions and inclinations” of the people they represent); OSTROM, supra note 2, at 99.
53
See T H E F E D E R A L I S T N O . 28, supra note 31, at 175. This change in allegiance can be seen even
today. Following the election of Barack Obama, the media excitedly reported that various online petitions and resolutions
http://scholarship.law.upenn.edu/jlasc/vol18/iss3/2
8
Neidhardt: The Federalist View of Right-to-Work Laws
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
2015]
THE FEDERALIST VIEW OF RIGHT-TO-WORK LAWS
5/13/15 11:42 AM
259
protect against an encroachment by the national government.54 This idea reflects an understanding
by the Federalists that organization of society is necessary to keep the government in line. They
put into action their belief that the people need leadership in order to keep the government in
check. It is through this organization that people will be able to change their government. If the
people have an organized way of expressing their opinions, they will be less likely to resort to the
use of force.
C. The Founders Desired the Use of Reason in Political Debates, Which
Requires an Organized Society
The Federalists wanted reason to be the driving force in American government;55 that is
why they designed a republic instead of a democracy.56 A republic differs from democracy in a
fundamental way: the people do not directly govern themselves.57 Rather, they are governed by
representative leaders.58 Those leaders then use the power of group discussion to arrive at the best
policy for the nation.59 This discussion relies on reason, rather than self-interested passion, to
achieve the best result.60 This view is probably a direct outgrowth of the Enlightenment era views
of the Federalists’ time.61
This theory is at once elitist and egalitarian, depending on one’s degree of cynicism. It is
elitist if one believes that only those voices belonging to the rich and powerful will be part of that
discussion. But it is egalitarian if one believes that all voices will be heard. Put another way, the
optimist believes that “[w]hen the cacophonous voice of the People is properly filtered through
had been filed to allow certain states to secede from the Union. See, e.g., Patrik Jonsson, States Rebel Against Washington,
CHRISTIAN SCI. MONITOR (Mar. 27, 2009), http://www.csmonitor.com/USA/2009/0327/p02s01-usgn.html; Sarah
Titterton, Texas Could Bid for Independence, Says Governor as Fury over Obama’s Spending Rises, DAILY MAIL (Apr.
16,
2009),
http://www.dailymail.co.uk/news/article-1170447/Texas-bid-independence-says-Governor-fury-Obamasspending-rises.html. This continued for a number of years. See, e.g., Manny Ferandez, White House Rejects Petitions to
Secede, but Texans Fight On, N.Y. TIMES (Jan. 15, 2013), http://www.nytimes.com/2013/01/16/us/politics/texassecession-movement-unbowed-by-white-house-rejection.html; Apparently, the signers of those petitions believed that their
state government would more effectively represent their views than the federal government.
54
T H E F E D E R A L I S T N O . 28, supra note 31, at 177 (“They can readily communicate with each other in
the different States, and unite their common forces for the protection of their common liberty.”).
55
WHITE, supra note 3, at 58, 103-105; OSTROM, supra note 2, at 47 (noting that “constraint is requisite for
the application of reason and justice in the conduct of human affairs”).
56
See T H E F E D E R A L I S T N O . 39, at 238 (James Madison) (Clinton Rossiter ed., 2003).
57
T H E F E D E R A L I S T N O . 48, at 306 (James Madison) (Clinton Rossiter ed., 2003) (describing the
difference between a democracy and republic).
58
OSTROM, supra note 2, at 97-101; see id. at 98 (“Through the institutional device of elected
representation, the government of a republic can extend to a larger number of people and to a larger region than a direct
democracy can.”).
59
See OSTROM, supra note 2, at 160.
60
See T H E F E D E R A L I S T N O . 42, at 264 (James Madison) (Clinton Rossiter ed.,2003) (“But the mild
voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies
as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain.”). See also OSTROM,
supra note 2, at 163-64 (describing how rival interests can work together for compromise).
61
See WHITE, supra note 3, at 3, 103-04.
Published by Penn Law: Legal Scholarship Repository, 2015
9
University of Pennsylvania Journal of Law and Social Change, Vol. 18, Iss. 3 [2015], Art. 2
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
260
UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE
5/13/15 11:42 AM
[Vol. 18.3
the moderating influences of the republic, the voice is tempered, channeled, and made
coherent.”62 The Federalists sought to strike a balance between a too-small constituency (which
would be partial to local interests) and a too-large one (in which the representatives cannot be
“acquainted with all their local circumstances”).63
We often forget this defining aspect of republican government today because we think of
America as a democracy—that is, a nation in which the people decide policy questions for
themselves. But this view obscures the important fact that governing by reason cannot be done by
the people as a whole. The whole group of “the people” cannot at once engage in a reasoned
discussion, which accounts for the varied interests represented in America.64 Even if it were
possible for them to do so, the Federalists clearly did not support this as an option—they wanted
the cream of the crop to head to Washington to talk things out and decide what was best for the
nation.65 And they took measures to ensure that the elite would not abuse that structure, by
implementing a system of separation of powers.66
The Federalist structure for government requires reason, but reason requires leadership.67
A republic can only be reasonable if it is made up of reasonable representatives—those who could
engage in the Federalist ideal of government by discussion. Clearly influenced by Enlightenment
thought, the Federalists took an empirical approach to government, looking at what has succeeded
in the past and designing a system that would be effective in avoiding past failures.68
One of the salient aspects of the Federalist vision of reason is the importance of
collective use of reason.69 It is easy to see why the Federalists, who had just thrown off the yoke
of tyrannical monarchy, believed it was problematic for one person to make decisions. When one
person has control over an entire government, she will sometimes make poor decisions.70 It is
easy to make errors when one person receives no input from others.71 Once the error is made, that
person’s pride makes it very difficult for her to admit that she was wrong, so the error will likely
62
David L. Gregory, Lessons from Publius for Contemporary Labor Law, 38 A L A . L . R E V . 1, 11
(1986).
63
THE FEDERALIST NO. 10, supra note 9, at 77; OSTROM, supra note 2, at 98.
64
See OSTROM, supra note 2, at 139.
65
See T H E F E D E R A L I S T N O . 48, supra note 57.
66
See OSTROM, supra note 2, at 164.
67
See T H E F E D E R A L I S T N O . 10, supra note 9, at 76 (noting the need to delegate government to a small
group of citizens who can best promote the public good).
68
See, e.g., T H E F E D E R A L I S T N O . 17, at 116 (Alexander Hamilton) (Clinton Rossiter ed., 2003)
(describing the structure of “ancient feudal systems”); T H E F E D E R A L I S T N O . 18, at 120 (James Madison) (Clinton
Rossiter ed., 2003) (describing the Amphictyonic and Achaean Leagues of Greece); T H E F E D E R A L I S T N O . 19 (James
Madison & Alexander Hamilton) (German confederacy); T H E F E D E R A L I S T N O . 20, supra note 28 (Netherlands
confederacy); T H E F E D E R A L I S T N O . 34, at 202 (Alexander Hamilton) (Clinton Rossiter ed., 2003) (Roman
legislatures).
69
See T H E F E D E R A L I S T N O . 10, supra note 9, at 73 (noting that the “first object of government” is to
protect the “diversity in the faculties of men.”).
70
Id. (“The reason of man continues fallible.”).
71
See OSTROM, supra note 2, at 43 (describing the assumption of the Federalists that human beings are
fallible).
http://scholarship.law.upenn.edu/jlasc/vol18/iss3/2
10
Neidhardt: The Federalist View of Right-to-Work Laws
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
2015]
THE FEDERALIST VIEW OF RIGHT-TO-WORK LAWS
5/13/15 11:42 AM
261
go uncorrected.72
In a group, however, her rivals will be quick to point out when she has made a faulty
decision.73 This is the beautiful thing about republican politics: even though there are strong
incentives to be nasty and harsh toward your rivals, that same incentive protects the rights of the
people. Rivals constantly will be on the lookout for errors, which they can use to their
advantage.74 Put simply: our rivals are better at detecting our flaws than we are.75
A republican government solves another aspect of this problem: it makes it possible for
others to apologize for or recant our mistakes.76 For example, if a legislator sponsors a policy that
turns out to be disastrous for the country, that individual legislator need not stand up and repeal it.
Others (allies or rivals alike) can do so easily, sparing the original legislator a great degree of
pain.
So it was obvious to the Federalists that government by discussion was essential to
government. They wanted government to engage in calm and cool deliberation for the nation,77
not to be an angry mob of self-interested individuals. When this is combined with their view that
government would include the interests of so many parts of American society, the system comes
together as a complete picture. Under this idealistic (if unrealistic) system, if every interest is
represented, and each engages in a totally rational discussion, we are bound to end up with the
best policies.
This theory is deeply dependent on knowledge, which is consonant with the Federalist
view that the national government would serve as a machine for transferring information to those
who make decisions.78 If the federal legislature is conceived of as a way of making use of reason,
it also depends on the transmission of knowledge. Full transmission of knowledge depends on an
organization of society in which the varied interests of the people can be coherently organized for
use by government representatives. Only within an organized society can all three Federalist
goals—the popular will, reason, and representation of all interests—be accomplished.
72
See T H E F E D E R A L I S T N O . 10, supra note 9, at 73 (“As long as the connection subsists between his
reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will
be objects to which the latter will attach themselves.”).
73
This Federalist viewpoint may not be universally accepted today. See Solomon E. Asch, Opinions and
Social Pressure, SCI. AM., Nov. 1955, at 31.
74
See generally T H E F E D E R A L I S T N O . 10, supra note 9 (describing the value of pitting one man’s
ambition against another’s). For a modern example, see President Obama’s Truth Team, which sought to point out the
flaws in the 2012 Presidential candidacy of Governor Mitt Romney. See David Nakamura, Obama’s ‘Truth Team’ Aims to
Network Its Way to a Reelection Win, WASH. POST (Feb. 13, 2012), http://www.washingtonpost.com/politics/obamastruth-team-aims-to-network-its-way-to-a-reelection-win/2012/02/10/gIQAGs5u9Q_story.html.
75
See, e.g., Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 H A R V . L .
R E V . 2311 (2006) (finding that the three branches of government are less competitive when they are controlled by the
same party).
76
See T H E F E D E R A L I S T N O . 3, at 39 (John Jay) (Clinton Rossiter ed., 2003) (explaining how
individual pride can easily get in the way of effective governance, especially in the domain of international relations).
77
See WHITE, supra note 3, at 109 (noting that “‘interest’ designates a calm, deliberate, and general passion
or desire for one’s own happiness”; this is contrasted with “passion”).
78
F E D E R A L I S T N O . 36, supra note 42, at 214 (providing example that local tax information could be
sent to the national government by way of elected representatives).
Published by Penn Law: Legal Scholarship Repository, 2015
11
University of Pennsylvania Journal of Law and Social Change, Vol. 18, Iss. 3 [2015], Art. 2
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
262
5/13/15 11:42 AM
UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE
[Vol. 18.3
II. A STRATEGY FOR ACHIEVING THE THREE FEDERALIST GOALS
A. Large Representative Groups Are Necessary Today to Represent the
Interests of the American People
At the time of the Federalist Papers, the American population was somewhere between
three and four million people.79 Today, there are well over three hundred million Americans80—
almost a hundredfold increase. At the same time, the size of the House of Representatives has
increased from its original size of sixty-five (one representative for every 33,000 people) to only
four hundred thirty-five, a sevenfold increase (one representative for every 700,000 people, with
some districts as large as 958,000).81 The size of the Senate has gone from twenty-six original
members to one hundred,82 which is only a fourfold increase. The number of decision-makers in
today’s government is disproportionately small in comparison to the population than at the time of
the Federalists.83
It follows logically that individual legislators have a more difficult time ascertaining the
needs of his or her individual constituents. It is simply not possible for a legislator with seven
hundred thousand constituents to know their varied needs on her own. Rather, members of
Congress depend on their staff to do a substantial amount of fact-finding. In fact, congressional
staff has increased dramatically in the last hundred years. In 1955, Congress (excluding legislative
agencies) employed 5,706 staff members.84 By 2005, this number had increased dramatically to
17,376.85 This increase occurred during a time when the size of the legislature itself did not
change at all.86
This increase has been met with a related increase in the presence of representative
79
T H E F E D E R A L I S T N O . 55, at 340 (James Madison) (Clinton Rossiter ed., 2003) (“Estimating the
Negroes in the proportion of three fifths, it can scarcely be doubted that the population of the United States will by that
time, if it does not already, amount to three millions.”); JOHN PECK, FACTS AND CALCULATIONS RESPECTING THE
POPULATION AND TERRITORY OF THE UNITED STATES OF AMERICA, 1-2 (Boston, 1799) (predicting that, at the end of
1790, there would be four million Americans).
80
PAUL MACKUN & STEVEN WILSON, U.S. CENSUS BUREAU, POPULATION
D I S T R I B U T I O N A N D C H A N G E : 2 0 0 0 T O 2 0 1 0 , a t 1 ( 2 0 1 1 ) , available at http://www.census.gov/prod/
cen2010/briefs/c2010br-01.pdf.
81
Peter
Baker,
Expand
the
House?,
N.Y.
TIMES
(Sept.
17,
2009),
http://www.nytimes.com/2009/09/18/us/politics/18baker.html; see OSTROM, supra note 2 at 101 (“If the United States had
been organized as a simple unitary republic, one can reasonably infer that the republic long ago would have fallen victim
to the constraint inherent in the size principle.”).
82
The original thirteen states have increased to fifty. Each state has two Senators.
83
It should be noted that this was part of the plan of the Federalists. They did not want the size of Congress
to increase proportionally with the size of the population, because they feared that it would one day become too large to
accomplish anything. T H E F E D E R A L I S T N O . 55, supra note 79, at 338-39; OSTROM, supra note 2, at 92-97.
84
R . E R I C P E T E R S E N , C O N G . R E S E A R C H S E R V . , R40056, L E G I S L A T I V E B R A N C H
S T A F F I N G , 1 9 5 4 - 2 0 0 7 , at 3 tbl.1 (2008), available at http://assets.opencrs.com/rpts/R40056_20081015.pdf.
85
Id. at 4 tbl.1.
86
It should be noted here that the Federalists did not want a large legislature, fearing that it would turn into
a “mob.” THE FEDERALIST NO. 55, supra note 79, at 340; see John Burt, Tyranny and Faction in the Federalist Papers,
RARITAN Fall 1993, at 56, 79.
http://scholarship.law.upenn.edu/jlasc/vol18/iss3/2
12
Neidhardt: The Federalist View of Right-to-Work Laws
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
2015]
THE FEDERALIST VIEW OF RIGHT-TO-WORK LAWS
5/13/15 11:42 AM
263
groups in Washington. American citizens rely on others to communicate their sides of the story to
the government more efficiently. They rely on large, representative groups of individuals and
organizations whose purpose is to effectuate that communication.87
Whereas it was once common for individuals to walk into the White House for a meeting
with the President,88 only the most elite members of American society would dream of doing that
today.89 It simply is not possible (nor would it be efficient) for government to work that way
anymore. In this fundamental way, the structure of government has changed, and today
government relies a great deal on representative leaders who have actual contact with government
officials. Of course, we must ask: who are these elite? Which individuals are having contact with
our government? Are there ways for the average American to be sure that her voice is being heard
in that room? While it is not possible to answer all of these questions in this Article, I will explain
why the Federalists would find them to be important.
Recall that the Federalists specifically mentioned that legislators would have an incentive
to learn what their constituents want—and that they would be most effective in their
representation if they depend on the people for their livelihood, because they would be forced to
learn their constituents’ views.90 If a legislator ignores his constituents, he will not keep his job
for long. This proposition makes perfect sense in light of the eighteenth-century viewpoint of the
Federalists. It was (relatively) easy to keep track of a small constituency. A member of the House
of Representatives needed only to know the viewpoints of some relatively small, homogenous
group of citizens (less than 33,000), who were all white, male, property owners. Today, members
of Congress need not learn the varied interests of every different group in their district—they need
to learn from those who are most likely to participate and affect their election.91 As I discuss
below, this means that certain classes of citizens (the wealthy, for example) are considerably more
likely to have their views represented than those with little influence. Those who have access to
government are represented.
Following a drastic increase in size, it is natural to observe a shift in government toward
legislator interaction with the leaders of organizations, rather than individual constituents. Just as
it is more efficient for a town to designate one person to bake all of the town’s bread (because
they acknowledge that it is far easier for one person to bake one hundred loaves of bread than for
one hundred people to each bake one), Americans find that it is sensible to delegate a large
87
FRANK R. BAUMGARTNER & BETH L. LEECH, BASIC INTERESTS: THE IMPORTANCE OF GROUPS IN
POLITICS AND IN POLITICAL SCIENCE, 89 (1998) (“Most Americans are members of interest groups and many more have
their interests represented by groups of which they are not formal members . . . .”).
88
Allen Thorndike Rice, Introductory to REMINISCENCES OF ABRAHAM LINCOLN BY DISTINGUISHED MEN
HIS TIME (Allen Thorndike Rice, ed., Harper & Bros. 1909) (1886) (“Most men who visited Washington during the
civil war met with Abraham Lincoln. Amid the clash of armed strife and the din of party struggle, he never denied to the
humblest citizen a willing ear and a cheering word.”); Katie Zezima, People Used to Be Able to Walk into the White
House.
Legally.,
WASH.
POST.
(Sept.
23,
2014)
http://www.washingtonpost.com/blogs/postpolitics/wp/2014/09/23/people-used-to-be-able-to-walk-into-the-white-house-legally/.
OF
89
However, it was possible to win a dinner with President Barack Obama during his campaigns if one
donated to his campaign. “I’m Asking One Last Time,” BARACKOBAMA.COM (Sept. 25, 2012)
https://www.barackobama.com/news/im-asking-one-last-time/.
90
See T H E F E D E R A L I S T N O . 46, at 297 (James Madison) (Clinton Rossiter ed., 2003).
91
See infra Part II.B.5.
Published by Penn Law: Legal Scholarship Repository, 2015
13
University of Pennsylvania Journal of Law and Social Change, Vol. 18, Iss. 3 [2015], Art. 2
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
264
UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE
5/13/15 11:42 AM
[Vol. 18.3
portion of their political influence to groups who can more efficiently represent them.92 This has
been the way American government has worked for a very long time.93 American politics have
been largely about civic organizations for the past century.94 Even today, presidential candidates
often begin their journey with stops at organizations like the Veterans of Foreign Wars or the Elks
Lodge in small towns in New Hampshire.95
But group representation does not require that candidates come to the groups. Often,
groups select a delegate who is able to go to the government. This allows one of the group’s
members to become an expert in the policy area most important to that group. If one considers the
fact that most legislation is too complicated or arcane for the average voter to fully understand,96
it makes sense that such legislation is passed into law with input mostly from experts. Individual
citizens hear bits and pieces about major bills through the news media, but the citizenry certainly
cannot be relied upon to dig into the details of complex legislation. The Federalists did not believe
that citizens should be forced to make time to deal with the details of governing—they were
expected to allow their representatives to do that work for them.97 We, too, should expect that our
interests will only be represented in government indirectly.
The decreased proportion with which each American is represented in the federal
government has left a gap in representational efficacy. In other words, we now depend on interest
groups to do some of the fact-finding representation that the Federalists assumed could be done
by members of Congress.98 It only makes sense that as each congressperson’s share of
constituents rose from thirty-three thousand to seven hundred thousand, Americans would find the
need to seek representation through other means. They would seek to have their voice heard by
channeling it through representative groups.
What are representative groups? Definitions among political scientists vary, but for the
purpose of this Article I assume that a “representative group” is an organization which represents
the social, political, or economic interests of a specified group of people. Some representative
groups form around issues, others around religion, and still more around employment status or
myriad other characteristics. For the purpose of analyzing the Federalist vision, I do not
distinguish sharply among these differences.
92
So large a portion, in fact, that groups spent some $2.6 billion on lobbying in 2006. Lloyd Hitoshi Mayer,
What Is This “Lobbying” That We Are So Worried About?, 26 Y A L E L . & P O L ’ Y R E V . 485, 519 (2008).
93
See, e.g., E . P E N D L E T O N H E R R I N G , G R O U P R E P R E S E N T A T I O N B E F O R E C O N G R E S S , 13
(1929) (describing the importance of group leaders in the political process of Washington).
94
See THEDA SKOCPOL, DIMINISHED DEMOCRACY: FROM MEMBERSHIP TO MANAGEMENT IN AMERICAN
CIVIC LIFE 23-30 (2003); Robert D. Putnam, Tuning In, Tuning Out: The Strange Disappearance of Social Capital in
America, 28 PS: POL. SCI. & POL. 664, 665 (1995) (explaining the relationship between political engagement and social
organizations).
95
See
New
Hampshire
Visits,
P2012
RACE
FOR
THE
WHITE
HOUSE,
http://www.p2012.org/chrnnewh/newhvisits12.html (last visited Apr. 30, 2015); New Hampshire Visits by Republican
Prospects in 2015, P2016 RACE FOR THE WHITE HOUSE, http://www.p2016.org/chrnnewh/nhvisits15r.html (last visited
Apr. 30, 2015).
96
See Ilya Somin, Political Ignorance and the Countermajoritarian Difficulty: A New Perspective on the
Central Obsession of Constitutional Theory, 89 I O W A L . R E V . 1287, 1334 (2004).
97
See T H E F E D E R A L I S T N O . 10, supra note 9, at 76.
98
See H E R R I N G , supra note 93, at 240 (describing extra-legal interest groups as “an integral part of our
representative system of government”).
http://scholarship.law.upenn.edu/jlasc/vol18/iss3/2
14
Neidhardt: The Federalist View of Right-to-Work Laws
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
2015]
5/13/15 11:42 AM
THE FEDERALIST VIEW OF RIGHT-TO-WORK LAWS
265
This collective need for political representation is essential to fulfill the Federalists’ main
goals of government: influence by the popular will, representation of all interests, and the use of
reason. Large representative groups can accomplish all three. On the other hand,
disproportionately powerful interest groups can destroy those goals.99
Take, for example, a political organization such as NARAL Pro-Choice America.100
Americans who support abortion rights need not take the time to write to their member of
Congress on every piece of abortion legislation that comes to the floor of the House. In fact, it
would be exceedingly difficult to do so based on the legislative process that allows riders to be
added to so many bills—abortion legislation could sneak into just about any bill. Instead, those
citizens can join and fund NARAL, an organization which promises to research that legislation
and provide representation on behalf of its citizen members.101 The organization then becomes
responsive to the needs of its citizen-benefactors, who provide funding and political support.102
NARAL, in return, becomes an expert on pro-choice arguments and abortion legislation and
provides the most effective representation possible.103 It is almost as if American citizens have
outsourced their government participation to an organization.
By “hiring” NARAL to provide them with this representation, the people are ensuring
that their version of the popular will is being heard by the federal government. Those who agree
with the organization are ensuring that their interest is represented. Of course, America is a
diverse nation with citizens whose interests vary widely. Thus, representation of the popular will
requires a great degree of work. Because many interest groups are focused on specific issues,104
groups exist to represent both sides of the debate.105 This situation has a long tradition in America.
Opposing interest groups have coexisted since at least 1929, when Pendleton Herring wrote:
Not only are almost all sorts of interests and classes represented but also all
sides of most questions as well. For example, the motorists have the American
Automobile Association; the manufacturers are represented by the National
Automobile Chamber of Commerce, while the distributors speak through the
National Automobile Dealers Association. Makers and sellers of accessories,
tires, batteries, and parts have their national associations. What of the poor
99
B A U M G A R T N E R & L E E C H , supra note 87, at 85.
100
NARAL PRO-CHOICE AM., http://www.naral.org/ (last visited Apr. 30, 2015).
101
See About Us, NARAL PRO-CHOICE AM., http://www.prochoiceamerica.org/about-us/ (last visited Apr.
30, 2015).
102
See Kay Lehman Schlozman & John T. Tierney, More of the Same: Washington Pressure Group
Activity in a Decade of Change, 45 J . P O L . 351, 354 (1983) (discussing the effect of developments in masscommunication on the “increased salience of indirect lobbying techniques in which groups mobilize citizens at the
grassroots to communicate with policymakers”).
103
See id. at 365 (quoting a chemical company’s senior lobbyist as stating “we’re doing a lot more
providing of research results and technical information”).
104
Such as NARAL, the National Rifle Association, the Human Rights Campaign, etc. But see Mayer,
supra note 92, at 532.
105
Some of the authors who held this view are collected in B A U M G A R T N E R & L E E C H , supra note 87,
at 87 (referencing generally works of de Tocqueville; HERRING, supra note 93; DAVID B. TRUMAN, THE GOVERNMENTAL
PROCESS: POLITICAL INTERESTS AND PUBLIC OPINION (1951); LESTER W. MILBRATH, THE WASHINGTON LOBBYISTS
(1963); and V.O. KEY, JR., POLITICS, PARTIES, AND PRESSURE GROUPS (5th ed. 1964)).
Published by Penn Law: Legal Scholarship Repository, 2015
15
University of Pennsylvania Journal of Law and Social Change, Vol. 18, Iss. 3 [2015], Art. 2
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
266
5/13/15 11:42 AM
UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE
[Vol. 18.3
pedestrian? There is the American Pedestrian Protective Association, organized
in 1926, with national headquarters in Washington. There is the Lord’s Day
Alliance on the one hand and the Association Opposed to Blue Laws on the
other . . . . Instances could be multiplied indefinitely . . . .106
But the reality is not so simple. Scholars have abandoned the view that all interests are
equally represented, because interest groups face organizational hurdles in getting off the
ground.107
The proliferation of interest groups promotes the Federalists’ principle that all interests
should be represented in government.108 The Federalists wanted opposing sides to come together
and, using reasoned discussion, come to a conclusion that takes those interests into account.109
Though sometimes these groups may not recognize that they are self-interested,110 “the primary
purpose of these organizations is to guard the interests of their respective groups.”111 This mirrors
the adversary legal system, which pits two sides against each other, with the hope that the most
beneficial outcome will result. However, if one side of an issue has a disproportionate share of
power, public policy will be skewed against the public interest.112
We must keep in mind the need for balance in such an adversary system. Just as the legal
system debates how procedural rules will benefit or prejudice one side in the courtroom, the
advantages given to certain groups will change how much our national political debate looks like
the Federalist vision of multi-interest representation.
These interest groups also contribute to the Federalists’ goal of promoting the use of
reason in political debate. An expert organization, which acts as a repeat player on the
government stage, will be held to a high standard by the government. Members of Congress, who
must make policy decisions, are more likely to pay attention to an organization that uses
persuasive argumentation, rather than appealing to passion or false claims. Organizations that use
unsavory tactics or skewed data quickly lose credibility.113
Of course, those groups might be influenced by factors we would consider undesirable
for use in republican decision-making, such as campaign donations. And we must keep in mind
that lobbyists present age-old opportunities for corruption and other unsavory activities. By and
large, however, the interest groups that survive are those that promote the views of their members
without breaking laws. Most importantly, they do so through the use of reason114—thus promoting
the Federalist goal of government by discussion.
106
H E R R I N G , supra note 93, at 22 (footnote omitted).
107
B A U M G A R T N E R & L E E C H , supra note 87, at 87.
108
See Mayer, supra note 92, at 539.
109
See supra Part I.C.
110
HERRING, supra note 93, at 23 (“[I]t is difficult to find a forthright acknowledgement on the part of the
group representatives that they are entirely self-interested.”).
111
Id.
112
Mayer, supra note 92, at 540.
113
See Schlozman & Tierney, supra note 102, at 365 (describing survey results which indicate “it was no
longer sufficient just to know the right people[, n]ow they must also marshall complicated and well-reasoned arguments”).
114
See id.
http://scholarship.law.upenn.edu/jlasc/vol18/iss3/2
16
Neidhardt: The Federalist View of Right-to-Work Laws
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
2015]
5/13/15 11:42 AM
THE FEDERALIST VIEW OF RIGHT-TO-WORK LAWS
267
However, this theory is subject to a flaw, which was unforeseeable by the Federalists. As
social scientist Mancur Olson argued, special interest groups that promote laws that benefit
certain individuals or businesses mobilize at a faster rate than public interest groups, which work
for laws that benefit society generally.115 These public interest groups seem to debunk the idea
that all interest groups are self-interested.116 Still, the theory that special interests “push
government officials away from making decisions in the public interest” is “[a]n important
scholarly and popular tradition.”117 We know that individuals with social or economic power have
an easier time representing their interests in government.118 In other words, our political
“adversary system” might unconsciously be putting a thumb on the scale in favor of special
interests.
In fact, there is evidence which points to a deep division in representation by lower-class
Americans in interest groups.119 There is a long line of scholarly thinking that the wealthy are able
to easily use the political process to maintain their wealth.120 If this view is true, it presents an
obvious problem for our government: how do we maintain the Federalist vision of government,
which is influenced by the popular will?
The only hope lies in the ability of non-wealthy Americans to use their collective
strength to defend their government from such negative influences. Given the difficulty attendant
to political organization, the American people are left with a singular realistic option: rely on
large, representative political organizations.
B. Labor Unions Are a Means for Representation of the Working Class in America,
and Right-to-Work Laws Reduce Their Effectiveness
1. Labor Unions Provide a Means of Representation
Among other things, labor unions exist to give a voice to American workers.121 While
this mission is broad and includes a wide variety of activities (including collective bargaining,
training, and much more), the focus of this section is on a union’s ability to collectively represent
individuals. Since it is organizationally difficult for the working class to speak with one voice, it
is crucial that they be able to work together to delegate their political representation to
115
MANCUR OLSON, THE RISE AND DECLINE OF NATIONS: ECONOMIC GROWTH, STAGFLATION, AND
SOCIAL RIGIDITIES (1982).
116
Consider, for example, environmental groups, which stand to gain very little personally from any policy
117
BAUMGARTNER & LEECH, supra note 87, at 86.
118
Id. at 89.
119
Id. at 92 (stating those with higher social status are much more involved than others).
victory.
120
See, e.g., E.E. SCHATTSCHNEIDER, THE SEMISOVEREIGN PEOPLE: A REALIST’S VIEW OF DEMOCRACY IN
AMERICA (Cengage Learning, 1975) (1960); C.M.A. Mc Cauliff, Didn’t Your Mother Teach You to Share?: Wealth,
Lobbying, and Distributive Justice in the Wake of the Economic Crisis, 62 R U T G E R S L . R E V . 383, 425 (2010) (“Those
without money, however, do not get the opportunity to present information about their lives to legislators nor do they get
the chance to explain the impact that proposed legislation will have on their lives.”).
121
What Unions Do, A F L - C I O , http://www.aflcio.org/Learn-About-Unions/What-Unions-Do (last visited
Apr. 30, 2015).
Published by Penn Law: Legal Scholarship Repository, 2015
17
University of Pennsylvania Journal of Law and Social Change, Vol. 18, Iss. 3 [2015], Art. 2
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
268
5/13/15 11:42 AM
UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE
[Vol. 18.3
organizational interests.122 Most importantly, the broad base, which forms the membership of
labor unions, creates a coherent voice for working Americans. Labor unions allow the working
class to counteract the disproportionate influence of the wealthy.123 Thus, labor unions have the
ability to promote the Federalist goal of political participation and representation of all classes.
Unions have a unique ability to perform this task because they have the ability to provide
broad-based representation for their members, with little active responsibility required of
individual members. While many interest groups work on a specific issue or two, labor unions
represent vast and diverse swaths of the American population. For example, the AFL-CIO
represents unions as diverse as the Air Line Pilots Association, the American Radio Association,
the Guild of Italian American Actors, the Farm Labor Organizing Committee, the International
Union of Police Associations, National Nurses United, and the Office and Professional
Employees International Union.124 The individuals included in these groups likely have little in
common except the economic issues they jointly face as members of the working class. In all, this
group of AFL-CIO members includes more than twelve million Americans.125 Nationally, there
are some 14.6 million workers who belong to unions, 11.1% of the population of wage and salary
workers.126 This diversity allows a national union like the AFL-CIO to focus on the common
interests of workers. It also allows for massive economies of scale—the larger the union, the less
individual work is needed to accomplish the group’s goals.
Because their members are middle- and lower-class,127 labor unions represent the type of
citizen who is unlikely to have her voice heard in government.128 In other words, labor unions fill
an important gap in America’s republican form of government. They represent individuals who
would otherwise have a very difficult time representing themselves in government.129 Because
these individuals are the least likely to engage with political organizations,130 it is important that
the group takes advantage of the economy of scale and asks relatively little of its individual
members.
Americans, as a whole, are very involved with political associations. In 1995, seventynine percent of Americans were involved with a voluntary organization.131 Sixty-one percent of
those were involved in an organization that takes a stand in politics, amounting to forty-eight
122
See supra Part II.A.
123
See What Unions Do, supra note 121.
124
AFL-CIO Unions, AFL-CIO, http://www.aflcio.org/About/AFL-CIO-Unions (last visited Apr. 30,
2015).
125
Id.
126
Union Members—2014,
news.release/pdf/union2.pdf.
127
BUREAU
LAB.
STAT.
(Jan.
23,
2015),
http://www.bls.gov/
The median weekly earning for a union member is $970, compared with $763 for a non-union employee.
Id.
128
See BAUMGARTNER & LEECH, supra note 87, at 86, 89, 92 (discussing the tendency of interest groups to
primarily benefit the wealthy).
129
See infra Part II.B.3 (regarding unions’ abilities to increase political participation).
130
See BAUMGARTNER & LEECH, supra note 87, at 86, 89, 92.
131
SIDNEY VERBA, KAY LEHMAN SCHLOZMAN & HENRY E. BRADY, V O I C E A N D E Q U A L I T Y : C I V I C
V O L U N T A R I S M I N A M E R I C A N P O L I T I C S 62 (1995).
http://scholarship.law.upenn.edu/jlasc/vol18/iss3/2
18
Neidhardt: The Federalist View of Right-to-Work Laws
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
2015]
5/13/15 11:42 AM
THE FEDERALIST VIEW OF RIGHT-TO-WORK LAWS
269
percent of Americans.132 However, more than half of those involved in voluntary organizations do
not get involved beyond a monetary donation;133 in social services groups, nearly eighty percent
of involvement is limited to a monetary contribution.134 American political participation is largely
limited to those with discretionary income, as I discuss below.
Involvement in political organizations depends in large part on the ability of that
organization to recruit—that is, to ask others to join. The high political participation rate of the
rich stems largely from the fact that they are asked to participate. Although high-income earners
are asked more often to participate in activities, they are not necessarily more likely to do so if
asked.135 In other words, low-income individuals are just as likely to join an organization if
presented with the opportunity. This is why it is so crucial for organizations to have the ability to
actively recruit new members: it may make the critical difference in an individual’s decision to sit
on the sidelines or get involved.136
This difference matters a great deal, especially when one considers the fact that about
half of respondents in one study could not recall being asked to participate in a political
organization at all within the past year.137 This means that many individuals are unlikely to ever
be solicited (let alone agree) to participate in politics. These individuals are more likely to be lowincome Americans—exactly the ones who need representation the most, because they lack the
capacity to participate in other ways (most notably with time and money). They are also the
individuals who could potentially be represented by a labor union since they are likely to have
jobs which could be unionized.
In fact, scholars have noted that labor unions fill a niche that is unique to American
politics—the absence of a labor-focused political party.138 In many other nations, a labor party
exists primarily to promote the views of the working class.139 This fits in with the Federalist
vision of elected officials who represent specific trades or classes of people.140
But labor parties do more than simply vote in a legislature. They “play a significant role
in the political mobilization of those who, on the basis of their income and education, might
otherwise not take part politically.”141 The American two-party system, however, has not allowed
space for a large, labor-oriented movement.142 But workers have not allowed this to stop them
132
Id.
133
Id. at 63, tbl.3.5.
134
Id. at 64.
135
Id. at 150.
136
But see id. at 158 (explaining that causality is not one-way—those who are asked are most likely to be
active, and those who are active are most likely to be asked).
137
Id. at 156.
138
Id. at 384-85.
139
See, e.g., Labor is for Workers, A U S T R A L I A N L A B O R P A R T Y , http://www.alp.org.au/workers (last
visited Apr. 30, 2015); History of the Labour Party, L A B O U R , http://www.labour.org.uk/pages/history-of-the-labourparty (last visited Apr. 30, 2015) (British Labour Party); Labour’s Proud History, L A B O U R ,
http://www.labour.ie/party/history (last visited Apr. 30, 2015) (Irish Labour Party).
140
See T H E F E D E R A L I S T N O . 42, supra note 60, at 264; OSTROM, supra note 2, at 163-64.
141
VERBA, SCHLOZMAN & BRADY, supra note 131, at 384.
142
Id. at 384-85; id. at 385 (noting that “there are no working-class or peasant parties” in American
Published by Penn Law: Legal Scholarship Repository, 2015
19
University of Pennsylvania Journal of Law and Social Change, Vol. 18, Iss. 3 [2015], Art. 2
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
270
UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE
5/13/15 11:42 AM
[Vol. 18.3
from being mobilized to ensure their representation—they have formed strong labor unions to
attempt to fill this gap.
But it has not exactly worked. American labor unions represent a “relatively small
proportion of the work force.”143 However, they offer an important resource: the development of
“civic skills,” which increase the likelihood of political engagement.144 These skills—as general
as education and language, and as specific as exposure to political issues—enable individuals with
the basic competency necessary to participate in their government.
And while these unions do in fact offer opportunities for increased political mobilization
and education,145 American labor unions do not totally fill the representation gap. American
workers still do not have an effective and permanent way to engage with the political process.146
Only a minority of Americans are members of a labor union.147 But if we believe that we should
preserve organizations which do some part to promote political participation, we should take the
role of labor unions very seriously.
The idea of labor unions as political representatives is in harmony with the Federalist
view that the different classes of society would choose to be represented in government by those
who promote their interests.148 While the founders could not have foreseen the enormity of the
industrial revolution and the resulting dominance of labor unions, they did recognize that different
occupations had different concerns.149 They believed that artisans would choose those who best
represented their interests: merchants.150 Today, however, workers are able to organize and vote
for one of their own to represent them. Labor unions make possible what the founders thought
impossible: the self-representation of individuals of lower classes in Congress. Labor unions
allow workers to pool their resources together to jointly pay for one of their own to go to
Washington to represent them (either officially as a member of Congress, or unofficially through
lobbying).151
Labor unions were able to carry out this representation at maximum efficiency when they
gained the ability to form a “closed shop,” which requires all workers at one business to be
members of the appropriate labor union.152 The benefits of this arrangement to the vitality of the
labor movement are obvious, and it results in the ability of labor to quickly amass political power
politics).
143
VERBA, SCHLOZMAN & BRADY, supra note 131, at 385 (finding that American churches function to fill
the gap in nurturing politically relevant skills); see also Union Members—2014, note 126 (finding only 11.1% of the
population of wage and salary workers belong to unions).
144
VERBA, SCHLOZMAN & BRADY, supra note 131, at 304.
145
See id. at 386 (finding that labor unions offer a greater chance for political participation than American
146
See id. at 384-85.
147
See Union Members—2014, supra note 126.
148
See supra Part I.
149
See OSTROM, supra note 2, at 163.
150
See THE F E D E R A L I S T N O . 35, supra note 45, at 211-12.
151
HERRING, supra note 93, at 138.
152
James C. Thomas, Right-to-Work: Settled Law or Unfinished Journey, 8 L O Y . J . P U B . I N T . L . 163,
churches).
172 (2007).
http://scholarship.law.upenn.edu/jlasc/vol18/iss3/2
20
Neidhardt: The Federalist View of Right-to-Work Laws
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
2015]
THE FEDERALIST VIEW OF RIGHT-TO-WORK LAWS
5/13/15 11:42 AM
271
to be used for the benefit of its members. It also allows labor unions to create the infrastructure to
encourage individual participation by their members.153 As a result, even when individual workers
do not agree with the union’s stance, they still benefit from the opportunities created by unions to
learn political skills.154
By providing a sort of automatic representation for the working classes, they provide a
counterbalance to wealthy special interests. Business interests can very easily and quickly
organize due to their greater resources and smaller numbers.155 The efficiency in recruitment and
membership created by labor unions is critical because opposing wealthy interests have numerous
advantages in organizing themselves politically. If labor unions are to be a counterbalance to the
wealthy, they must be feasible to organize.
Historically, robust labor unions have been able to provide tangible economic benefits in
addition to political organization. According to a study by the Congressional Research Service,
“the wages of union workers are in the range of 10% to 30% higher than the wages of nonunion
workers.”156 This amount includes wages and fringe benefits—union workers usually receive
better fringe benefits than nonunion workers.157
But, as with any other special interest which wields a large amount of power, bad actors
were able to abuse the system of labor unions. As a result, the approval rating of labor unions has
dropped from a high of 75% in the 1950s to 52% in 2011.158
Of course, whether labor unions have ultimately been good for the economy is the
subject of vigorous debate.159 Perhaps it is true that labor unions do not ultimately work best to
protect the economic interests of their members. But I do not seek to address the larger question
of the merits of union representation in this Article.
But the point remains today: in a society in which the wealth of the top one percent of
wage earners is increasing quickly, labor unions provide a means for mass representation of lowand middle-income workers. They provide an avenue for individuals whose voices would
otherwise be lost. They provide an infrastructure which channels those voices into organizational
leaders. Because of these features, membership in labor unions might be the only way for the
majority of Americans to effectively counteract the disproportionate influence of the richest
Americans.
2. The Effect of Right-to-Work Laws
The ability of unions to organize has been undercut by recent movement toward so153
See infra Part II.B.3.
154
See infra Part II.B.3.
155
BAUMGARTNER & LEECH, supra note 87, at 94-95, 106, 107.
156
GERALD MAYER, C O N G . R E S E A R C H S E R V ., U N I O N M E M B E R S H I P T R E N D S I N T H E
UNITED
STATES
6
(2004),
available
at
http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?
article=1176&context=key_workplace.
157
Id. at 7.
158
Jeffrey M. Jones, Approval of Labor Unions Holds Near Its Low, at 52%, GALLUP (Aug. 31, 2011)
http://www.gallup.com/poll/149279/approval-labor-unions-holds-near-low.aspx.
159
See, e.g., Richard A. Epstein, The Last Gasp of Union Power, HOOVER INSTITUTION (Oct. 31, 2012),
http://www.hoover.org/research/last-gasp-union-power.
Published by Penn Law: Legal Scholarship Repository, 2015
21
University of Pennsylvania Journal of Law and Social Change, Vol. 18, Iss. 3 [2015], Art. 2
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
272
5/13/15 11:42 AM
UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE
[Vol. 18.3
called “right-to-work” laws. These laws “criminalize compulsory union membership and grant to
workers individual freedom to join or refrain from joining labor unions.”160 In right-to-work
states, workers are free to choose whether they will pay union dues or not, but “unions remain
obligated to provide full services and benefits of union representation to all workers whether they
pay dues or not.”161
The first right-to-work law was passed as a constitutional amendment in Florida in
1944.162 The right-to-work movement began in earnest in the South, where textile manufacturers
saw the need to fend off potential unionization of their workers.163 Right-to-work laws were
pursued on the state level due to a perception that the national labor policy would continue to
favor unions.164 Between 1944 and 1946, Arkansas, South Dakota, Nebraska, and Arizona enacted
right-to-work laws.165 In 1958, voters rejected similar measures in California, Ohio, Colorado,
Idaho, and Washington—a right-to-work law was approved only in the agricultural state of
Kansas that year.166 Over time, right-to-work laws were eventually passed in twenty-five states.167
During this time period, the federal government also enacted the Taft-Hartley Act, which
guaranteed employees the right not to join unions.168 As a result, union shops are only allowed
where state law permits, and only when a majority of workers vote for them.169 The Act also
required advance notification if a union planned to strike, restricted union political contributions,
and required union officers to deny any Communist affiliations.170
Proponents of right-to-work laws claim that these laws benefit society because they
allow for optimal free-market transactions.171 If one sees union representation as a means for
achieving only a contract, there is no reason why employment at a company should be dependent
upon being a member of that union.172 In other words, the union can bargain for a contract, but it
cannot exclude nonmembers from employment (as in a closed shop). The argument is based on
the free-market right to contract for one’s own employment, to “improve fairness for workers who
160
Thomas, supra note 152, at 163.
161
Id.
162
J.R. DEMPSEY, T H E O P E R A T I O N O F R I G H T - T O - W O R K L A W S 1-2 (Marquette University Press
1961).
163
GILBERT J. GALL, T H E P O L I T I C S O F R I G H T - T O - W O R K : T H E L A B O R F E D E R A T I O N S A S
S P E C I A L I N T E R E S T S , 1 9 4 3 - 1 9 7 9 , a t 18 (Greenwood Press 1988).
164
Id. at 19.
165
Id. at 19.
166
DEMPSEY, supra note 162, at 1.
167
See Right-to-Work States, N A T ’ L
http://www.nrtw.org/rtws.htm (last visited Apr. 30, 2015).
RIGHT
168
ENCYCLOPÆDIA BRITANNICA 494 (15th ed. 2002).
169
Id.
170
Id.
TO
WORK
LEGAL
DEF.
FOUND.,
171
Richard Vedder, Matthew Denhart & Jonathan Robe, Right-to-Work and Indiana’s Economic Future,
IND. CHAMBER 1-3 (Jan. 2011), http://www.indianachamber.com/images/media/studies/IndianaRightToWork-1-27-11.pdf.
172
See DEMPSEY, supra note 162, at 3.
http://scholarship.law.upenn.edu/jlasc/vol18/iss3/2
22
Neidhardt: The Federalist View of Right-to-Work Laws
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
2015]
THE FEDERALIST VIEW OF RIGHT-TO-WORK LAWS
5/13/15 11:42 AM
273
may or may not want to pay to join a union.”173
Michigan Governor Rick Snyder argues that individuals will still want to join labor
unions if they offer services that are good enough.174 This argument misses the obvious
counterargument that such a system creates a major incentive for free-riding.175 Why would
someone join a labor union if they could get all of its benefits without paying for any of the cost?
Why buy the cow if you can get the milk for free?
The unions themselves, however, see the necessity of a closed shop as an essential means
of survival.176 A closed shop dramatically changes the organizational hurdles faced by labor
organizers. In fact, some scholars identify the primary “problem of the American labor
movement” as the difficulty in getting and staying organized.177
Naturally, the state of affairs under right-to-work laws makes it very difficult for labor
unions to remain a viable option. Union members are forced to expend resources to actively
engage their fellow workers to convince them to join and pay for representation in a union.178
Many of them simply do not want to pay. As a result, unionization has declined between 10% and
30% in right-to-work states.179
In the United States, the number of unionized workers has decreased from a high of
28.3% of workers in 1954, to 11.5% in 2003.180 It is difficult to pinpoint the cause of this
decrease. However, of the twenty-five states which enacted right-to-work laws, sixteen were
enacted between 1944 and 1955.181 This fact, combined with research showing that right-to-work
laws directly decrease union membership,182 is strong evidence that right-to-work laws are a
significant cause of reduced unionization in America.
173
Matthew Dolan & Kris Maher, Push to Curb Union Power Advances in Michigan, WALL ST. J., Dec. 7,
2012, at A4.
174
See id.
175
Raymond Hogler & Steven Shulman, The Law, Economics, and Politics of Right to Work: Colorado’s
Labor Peace Act and Its Implications for Public Policy, 70 U . C O L O . L . R E V . 871, 930 (1999).
176
See “Right to Work” Laws: Get the Facts, MINNESOTA AFL-CIO, http://www.mnaflcio.org/news/rightwork-laws-get-facts (last visited Apr. 30, 2015) (arguing that allowing nonunion workers to take advantage of union
services weakens “the best job security protections workers have”); James R. Eissinger, The Right-to-Work Imbroglio, 51
N.D. L. Rev. 571, 572 n.6 (1975) (noting that labor unions opposed a right-to-work provision); DEMPSEY, supra note 162,
at 3.
177
DEMPSEY, supra note 162, at 4 (citing Selig Perlman, Labor and the New Deal in Historical Perspective,
in L A B O R A N D T H E N E W D E A L 3 6 1 , 363 (Milton Derber & Edwin Young, eds., 1957)).
178
In Right-to-Work States, Members Do the Hard Work of Organizing, C O M M U N I C A T I O N S
WORKERS
OF
AMERICA
(Dec.
1,
2010),
http://www.cwa-union.org/news/entry/in_Right-toWork_states_members_do_the_hard_work_of_organizing#.
179
Hogler & Shulman, supra note 175, at 930.
180
MAYER, supra note 156.
181
Right-to-Work Resources, NAT’L CONF. ST. LEGISLATURES, http://www.ncsl.org/research/labor-andemployment/right-to-work-laws-and-bills.aspx (last visited Apr. 30, 2015).
182
Hogler & Shulman, supra note 175, at 930.
Published by Penn Law: Legal Scholarship Repository, 2015
23
University of Pennsylvania Journal of Law and Social Change, Vol. 18, Iss. 3 [2015], Art. 2
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
274
5/13/15 11:42 AM
UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE
[Vol. 18.3
3. Labor Unions Work to Achieve Political Representation for Their Members
Labor unions have the ability to organize a large number of individuals, acting as a sort
of “special interest” to counter other organized special interests.183 They are under attack by
Republican politicians who support right-to-work laws “to promote worker freedom and to
promote greater economic liberty.”184 On the other hand, Democratic politicians continue their
alliance with labor unions to promote collective bargaining as a “path to the middle class.”185 It is
unsurprising that right-to-work laws have been promoted by Republicans. Democrats support
labor unions at a rate of 78%, while Republican support was 26% in 2011.186
The recent attacks on labor unions have mostly occurred in the Midwestern states of
Ohio,187 Indiana,188 Michigan,189 and most recently, Wisconsin.190 Republican politicians have
proposed them all. This makes sense given the opinion poll just mentioned, but it also underscores
the theoretical basis for this Article. Labor unions give 92% of their funding to Democrats.191
Why do they do this? Labor union members are much more likely to be Democrats than
Republicans.192 In other words, labor unions are being used by individuals to pool their resources
and donate money to help elect the politicians they agree with.193 Even if a union member does
not individually agree with every view of a candidate, the infrastructure of union membership
encourages more participation, prompting all union members to participate, even if they vote
183
See Part II.B.1; see generally GALL, supra note 163 (describing the rise of unions in politics as the
development of a special interest).
184
We Believe in America: 2012 Republican Platform, REPUBLICAN NATIONAL COMMITTEE 8 (2012),
http://www.gop.com/wp-content/uploads/2012/08/2012GOPPlatform.pdf.
185
MOVING AMERICA FORWARD: 2012 DEMOCRATIC NATIONAL PLATFORM, http://assets.dstatic.org/dncplatform/2012-National-Platform.pdf; see GALL, supra note 163, at 8 (discussing the “labor-Democratic alliance”).
186
Jones, supra note 158.
187
See Robert Alt, Ohio Needs a Second Dose of Labor Reform, WALL ST. J. (Apr. 24, 2015)
http://www.wsj.com/articles/ohio-needs-a-second-dose-of-labor-reform-1429913774.
188
See Mark Guarino, Indiana ‘Right to Work’ Law: What it Means for the Pro-Union Rust Belt,
CHRISTIAN SCI. MONITOR (Feb. 7, 2012), http://www.csmonitor.com/USA/Politics/2012/0207/Indiana-right-to-work-lawwhat-it-means-for-the-pro-union-Rust-Belt.
189
Monica Davey, Limits on Unions Pass in Michigan, Once a Mainstay, N . Y . T I M E S , Dec. 12, 2012, at
A1.
190
See Douglas Belkin, Colleen McCain Nelson & Caroline Porter, Recall Bid Fails in Wisconsin: Gov.
Scott Walker’s Win Caps Fiery Battle, Deals Public-Sector Unions a Blow, W A L L S T . J . (June 6, 2012),
http://online.wsj.com/articles/SB10001424052702303918204577448313090640398.
191
Tom McGinty & Brody Mullins, Political Spending by Unions Far Exceeds Direct Donations, W A L L
S T . J . , July 10, 2012, at A1.
192
Frank Newport, Dan Witters & Sangeeta Agrawal, Democrats Lead Ranks of Both Union and State
Workers, G A L L U P (Mar. 24, 2011), http://www.gallup.com/poll/146786/democrats-lead-ranks-union-state-workers.aspx.
193
Aaron J. Sojourner, Do Unions Promote Members’ Electoral Office Holding? Evidence from Correlates
of State Legislatures’ Occupational Shares, ILR REV. J. WORK & POL’Y 467, (2013) (finding that unionization results in
elected political leadership by individuals from working- and middle-class jobs). This has long been one of the goals of
labor unions. See HERRING, supra note 93, at 138.
http://scholarship.law.upenn.edu/jlasc/vol18/iss3/2
24
Neidhardt: The Federalist View of Right-to-Work Laws
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
2015]
THE FEDERALIST VIEW OF RIGHT-TO-WORK LAWS
5/13/15 11:42 AM
275
against the union’s preferences.194 They are working together to promote the representation of
their views in government.
There is an obvious counterargument to this line of thought: about a quarter of union
members are Republicans.195 Those Republicans should not be forced to donate to candidates
whom they do not support. But there are two important flaws in that argument. First, it falsely
assumes that registered Republicans never support Democrats. Second, it assumes that there is no
way for union members to opt out of political spending, but the Supreme Court has required such
an opt-out in its union security cases.196
With this caveat, it is easy to see how labor unions form an organization that allows a
group of workers to elect representatives who agree with their views. Looking at labor unions
only from this view, they are an example of one way to give low-income Americans the boost
they need to counteract the organizational advantage of the wealthy. But labor unions have had to
fight tooth and nail for the rights they have today.
In fact, it was the battle over the very same right-to-work proposals that prodded labor
unions to begin their increased active participation in state politics.197 Labor unions were forced to
fight for their participation in American government, and they met the challenge by resorting to
both electoral and lobbying activity. Today, they provide an opportunity for political involvement
and engagement that might not be available to a large segment of American citizens.198
This organization and engagement provides something the Federalists would have
wanted: a means for political engagement at a time when it is extremely difficult for Americans to
be involved directly with government, due to the increasing size and diversity of the population.
The Federalists recognized the importance of organization in order to resist the encroachments of
overzealous government.199 Today, unions provide that degree of organization for about eleven
percent of Americans.200 This allows labor unions, as a group, to interact directly with the
government,201 in furtherance of the Federalist vision of inclusion of interests.
If individual union members were asked to provide direct input on something as complex
as the federal budget (or even any of the fifty states’ budgets), they, like most people, would
194
Roland Zullo, Union Membership and Political Inclusion, 62 INDUS. & LAB. REL. REV. 22 (2008)
(finding that unionization increases voter turnout, even though those voters did not always vote with pro-labor candidates).
195
See Newport, Witters, & Agrawal, supra note 192.
196
See Int’l Ass’n of Machinists v. Street, 367 U.S. 740, 768-69 (1961) (Douglas, J., concurring); Benjamin
I. Sachs, Unions, Corporations, and Political Opt-Out Rights After Citizens United, 112 C O L U M . L . R E V . 800 (2012)
(describing the history of the opt-out right and arguing that a similar right should exist for corporate shareholders). It is not
immediately apparent, however, that each employee should only have the choice of one labor union. If an alternate labor
union would better promote an individual’s interests, perhaps she should be able to join that other one.
197
GALL, supra note 163, at 9.
198
Zullo, supra note 194, at 22 (finding that unionization increases voter turnout for union members, even
though those voters did not always vote with pro-labor candidates).
199
See supra Part I.B.
200
See Union Members—2014, supra note 126.
201
See Jasmine Kerrissey & Evan Schofer, Union Membership and Political Participation in the United
States, 91 SOCIAL FORCES 895, 899 (2013) (indicating that labor unions’ encouragement of participation by their members
results in increased active participation in politics).
Published by Penn Law: Legal Scholarship Repository, 2015
25
University of Pennsylvania Journal of Law and Social Change, Vol. 18, Iss. 3 [2015], Art. 2
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
276
UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE
5/13/15 11:42 AM
[Vol. 18.3
probably be at a loss. In truth, very few people understand such complex legislation.202 Labor
unions allow individual members to have a delegated representative who can provide input on
these complex issues through lobbying, or by providing the infrastructure for union members to
engage in direct action such as protests.
4. Labor Unions Provide a Voice to Those Who Would Otherwise Not Participate in Government
Perhaps the most important aspect of this beneficial effect is that most individuals in
labor unions would otherwise have no voice at all because it is difficult for an individual voice to
be heard in today’s government. The union members would have an extraordinarily difficult time
counteracting the well-organized business interests.203 If not for unions, many wageworkers
would not participate at all in elections. If not for unions, they would have one fewer civic
institution providing the needed skills to participate in democracy.
The Federalists emphasized the need for skilled, reasoned political debate.204 They did
not want mobs with pitchforks deciding national policy. The Federalists recognized that
government is simply too complex and too nuanced to be run by uneducated or unsophisticated
individuals.205 The Federalists were writing before the true dawn of the Industrial Revolution, so
they did not see society organized into the same structure we see today. If they did, they would
recognize that their desire for reason and a government made of the best men would result in large
segments of society (low-income and industrial workers especially) being virtually unrepresented.
This stands in direct contrast with their desire for different interests to be represented.206
Labor unions can solve this problem. The ability to delegate political representation
means that even the least economically empowered among us can find a way to obtain direct
representation in government. But that representation depends on the ability of the union to recruit
members. Right-to-work laws force Unions to provide services even to non-members—essentially
allowing free riders to get something for nothing.207 This is unsustainable in the long run. It will
continue to weaken the power of unions, and therefore weaken individuals’ ability to have their
voices heard in government.
5. Counterarguments: Are Labor Unions Really the Answer to the Federalist Vision?
There is no doubt that the Federalists were concerned about the harmful ability of
factions to usurp the national governing process to serve their own interests.208 In fact, this is
perhaps the part of the Federalist Papers which is most often remembered by politicians,
202
See Somin, supra note 96, at 1294.
203
See BAUMGARTNER & LEECH, supra note 87, at 107.
204
See supra Part I.A.
205
See supra Part I.C.
206
This might seem contradictory today in light of the fact that they also granted the vote only to white,
male property owners. However, they believed that such limited suffrage would in fact represent all interests—they just
had a different idea about interests.
207
See supra Part II.B.3.
208
See, e.g., THE F E D E R A L I S T N O . 9, supra note 7; THE F E D E R A L I S T N O . 10, supra note 9; THE
FEDERALIST NO. 16 (Alexander Hamilton).
http://scholarship.law.upenn.edu/jlasc/vol18/iss3/2
26
Neidhardt: The Federalist View of Right-to-Work Laws
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
2015]
THE FEDERALIST VIEW OF RIGHT-TO-WORK LAWS
5/13/15 11:42 AM
277
attorneys, and judges who shape our laws today. Federalist No. 10 is the most famous explanation
of this theoretical conundrum: how do you allow a popular government to exist without enabling
unstable factions to form and control that very government?
Proponents of a right-to-work law could plausibly argue that unions are the prototypical
form of faction: they organize a large mass of people around a single theme, and they have a
substantial impact on the outcome of elections. Are labor unions not “united and actuated by some
common impulse of . . . interest, adverse to the rights of other citizens,” as Madison warned?209
Labor unions have been formed specifically for the purpose of uniting the class of workers against
the class of management. If completely successful, might they represent a majority faction which
imposes its will on the rest of the nation?
Furthermore, proponents of a right-to work law would argue that labor unions do not rely
on the use of reason—they are notorious for riling up the passions of their members for political
purposes.210 In fact, the “laboratory conditions” doctrine prohibits tactics that are not aimed at
“reasoning faculties,” indicating an assumption in labor law doctrine that unions often rely on
emotional appeals.211 Unions are often required to wait during “cooling-off periods” before voting
to unionize.212 They have participated in events like Occupy Wall Street,213 which specifically
draw attention to an emotional aspect of their arguments: that the rich are taking advantage of the
rest. Unions are taking advantage of emotions, rather than relying on the force of reason. The
Federalists warned us against exactly this: allowing passion to creep in and poison the political
process.214 Labor unions, right-to-work advocates would say, are pushing us away from the
Federalist vision of reasoned, open discussion in national government.
But these arguments would misrepresent the context in which Madison discusses faction
in Federalist No. 10.215 Madison explained why the national government deals with factions better
than any previous government. Faction is inevitable.216 He explained that the federal
government’s structure would prevent faction by drawing in all of the interests of society.217
Madison said that if the national government properly represents a wide range of views, no single
majority will be able to prevail.218 He said that the Constitution would accomplish this by
209
THE F E D E R A L I S T N O . 10, supra note 9, at 72.
210
Brishen Rogers, Passion and Reason in Labor Law, 47 HARV. C.R.-C.L. L. REV. 313, 348 (2012) (“[T]o
overcome workers’ skepticism toward or fears of organizing, . . . . leaders utilize emotionally- and politically-charged
appeals . . . .”).
211
Id. at 315.
212
Id. at 334.
213
Steven Greenhouse & Cara Buckley, Seeking Energy, Unions Join Protest Against Wall Street, N . Y .
T I M E S (Oct. 5, 2011), available at http://www.nytimes.com/2011/10/06/nyregion/major-unions-join-occupy-wall-streetprotest.html.
214
See supra Part I.C.
215
It should also be noted that these references to passion relate to the act of unionizing or negotiating with
management, not to political representation after formation of the union.
216
THE F E D E R A L I S T N O . 10, supra note 9, at 73-75.
217
Id. at 74-78.
218
Letter from James Madison to Thomas Jefferson (Oct. 24, 1787), in 1 T H E D E B A T E O N T H E
C O N S T I T U T I O N , 192, 201 (Bernard Bailyn, ed., 1993).
Published by Penn Law: Legal Scholarship Repository, 2015
27
University of Pennsylvania Journal of Law and Social Change, Vol. 18, Iss. 3 [2015], Art. 2
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
278
UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE
5/13/15 11:42 AM
[Vol. 18.3
expanding the pool of citizens from which to choose representatives.219 This enlarged pool would
permit only the most public-spirited individuals to achieve a position of influence in the
government.
Labor unions make an important contribution to expanding the pool of citizens from
which to choose representatives. They solve the collective action problem faced by millions of
workers who could not individually obtain representation. By pooling their resources to provide
for a group representative, labor unions can have some influence on policy, or may even actually
run one of their own members for political office.
A thought experiment is helpful for understanding the importance of organized
representation for low-income individuals. Imagine for a moment what a world without any
organized labor would look like. It is a world in which many wage earners wake up, go to work
early, come home late, and go to sleep. Some would probably be able to negotiate more favorable
contracts with employers, but the most vulnerable—those with the least bargaining power—
would be given the worst deal. Yet many would still choose to keep their employment for fear
that they have no other options, or because the other options are equally bad.
In such a world, how would James Madison’s project of reducing factionalism work?
The large number of congressional representatives would still be drawn from the far-flung reaches
of the nation to represent the patchwork of interests inherent in America’s immensity. But, in such
a world, can we realistically expect wage earners to be among those representatives?
Of course, Madison’s view must be altered somewhat to account for the fact that we no
longer believe that only certain classes of individuals are qualified to participate in that choice.
The trend in the United States since its founding has been toward more participation, and more
inclusion in the electoral process (albeit with some significant setbacks). We have granted the
right to vote to non-property-owners,220 and then African-Americans males,221 then women,222
then young people.223 In light of this history, it only makes sense to reinterpret Madison’s vision
of broad inclusion as a mandate to represent the interests of these groups as well.
One might speculate that the Federalists would not have supported a requirement that a
worker pay dues to a third party in order to engage in a contract with his employer. Such a
counterargument fails to acknowledge, however, that large corporations did not exist at the time
of our nation’s founding. If they had, the Federalists might have been forced to confront the
question of whether labor laws fit their vision of government. But if we look solely to the issue of
political representation, the Federalists’ views are quite clear: they wanted inclusion of different
voices.224 So the question for the Federalist vision is whether labor laws promote or discourage
participatory democracy.
219
THE F E D E R A L I S T N O . 10, supra note 9, at 77.
220
KIRK HAROLD PORTER, A HISTORY OF SUFFRAGE IN THE UNITED STATES 78-111 (Univ. Chi. Press
1918) (describing how states removed voting requirements of property ownership).
221
U . S . C O N S T . amend. XV.
222
U . S . C O N S T . amend. XIX.
223
U . S . C O N S T . amend. XXVI. However, we still deny electoral participation to significant groups—
former convicts, and those without photo identification, for example. See Robert A. Levy, Voter ID Laws and Rights of
Convicted Felons, C A T O A T L I B E R T Y (May 10, 2014, 10:55 AM), http://www.cato.org/blog/voter-id-laws-rightsconvicted-felons.
224
See supra Part I.B.
http://scholarship.law.upenn.edu/jlasc/vol18/iss3/2
28
Neidhardt: The Federalist View of Right-to-Work Laws
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
2015]
THE FEDERALIST VIEW OF RIGHT-TO-WORK LAWS
5/13/15 11:42 AM
279
Low-income individuals face a significant disadvantage when it comes to participating in
the political process. They lack the two most important resources needed to participate directly in
the political process: time and money.225 A study conducted by Professors Sidney Verba, Kay
Lehman Schlozman, and Henry E. Brady found that while the average citizen participates in 2.1
political acts per year,226 low-income individuals participated remarkably less.227 These “political
acts” include the simple act of voting.228 Those who made between $15,000 and $34,999
participated in 1.9 acts per year.229 Those who made less than $15,000 participated in 1.3 acts per
year.230 This disparity is especially poignant when compared to individuals who make above
$125,000 per year, who participate 3.4 times per year, on average.231
The act of voting was the only activity in which high-income earners did not double the
participation rates of low-income individuals.232 But 86% of those with high income voted, still
outpacing low-income voting, at 52%.233 This disparity is shocking given that voting is probably
the least demanding form of political participation. Of course, we cannot know what causes this
gap. It could be due to lack of resources, but it could also be due simply to the fact that there is a
dearth of organization—that low-income Americans are simply less likely to be asked to
participate.234 But it is not surprising if one considers the union-free world I described above. If an
individual is left without even the time needed to cast a ballot, we certainly would not expect her
to donate further time volunteering for a campaign.
This is a major problem for Madison’s vision. In order to achieve a broad representation
of interests, those with diverse interests must be able to at least participate in the most basic level
of political activity. To understand this point, it is useful to consider a hypothetical. Imagine that
no low-income individuals were able to vote. In such a society, no portion of Congress would
have a stake in representing the interests of poor people. This is the worst-case scenario for
Madison’s Federalist No. 10. This is factionalism at its worst—a segment of society (the middle
and upper classes) has effectively banded together and is able to ignore another class of society
(the poor).
The representation of low-income individuals is not a promotion of factionalism or a
repudiation of Madison’s plan in Federalist No. 10. Rather, Madison’s vision requires that some
members of Congress represent the needs of low-income Americans. To exclude any portion of
Americans would enable the very factional control he warned against. We can only adhere to
Madison’s vision by ensuring representation of all interests, so that no single group can take
control over the government. Large representative groups like labor unions advance this goal, and
the more easily they can recruit, the easier they can represent their members.
225
VERBA, SCHLOZMAN & BRADY, supra note 131, at 289.
226
Id. at 188 fig.7.1.
227
Id. at 190 fig.7.2.
228
Id.
229
Id. at 188 fig.7.1.
230
Id.
231
Id.
232
Id. at 190 fig.7.2.
233
Id.
234
Id. at 150 fig.5.2.
Published by Penn Law: Legal Scholarship Repository, 2015
29
University of Pennsylvania Journal of Law and Social Change, Vol. 18, Iss. 3 [2015], Art. 2
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
280
5/13/15 11:42 AM
UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE
[Vol. 18.3
So whose views actually do get represented in our government? Professors Verba,
Schlozman, and Brady found that “[t]hose whose preferences and needs become visible to
policymakers through their activity are unrepresentative of those who are more quiescent in ways
that are of great political significance.”235 The government simply does not get as much
information from those who face problems of “basic human needs.”236
Of course, one could argue that this has nothing to do with unions because union
members are statistically better off than those who face these more drastic needs. But this
argument misses the point. Labor unions are some of the only large organizations that focus on
the needs of people at the lower end of the income spectrum. While they may not actually
represent the absolute neediest, they come closer than many other organizations. And given the
inherent advantages that business interests have, we should not let the imperfections of labor
unions hinder the good they do. Further, unions are constantly seeking to expand and include new
members so that they can pull more workers out of poverty. The goal of the labor movement is to
help the poorest workers achieve their fair share of representation. Of course their members will
be better off than the neediest—that means that they are successful in their mission.
An objection that labor unions do not represent the neediest is invalid because labor
unions bring low-income Americans into the political process. Even though unions may not
perfectly represent their members in every way, they have the ability and scale to bring large
groups of people into the political process. So even if one believes that labor representatives are
no better at representing the working class than political representatives, labor unions still serve a
public good: inclusion of people in the political process. An important finding in the Verba,
Scholzman, and Brady study is that “[o]nce active, . . . the poor are as generous with their time as
those who are better off financially.”237 According to Professors Verba, Scholzman, and Brady,
the poor’s “lack of financial resources does not appear to act as an impediment to the investment
of ‘sweat equity.’”238 This suggests that low-income workers do not a lack interest or ability to
participate. They simply need to be “activated,” that is, they need a spark to ignite their flame of
political participation.
This is something which unions can provide. Labor unions solve a collective action
problem faced by workers. Since no individual has the time or resources to individually obtain
representation in government, a collective group is necessary. This group can create a framework
for carrying out that collective bargaining, but also a framework for political activism and
effective representation in government. In other words, such a group is necessary to accomplish
Madison’s view by ensuring the representation of the group’s members in government. Without a
group to represent low-income Americans, the faction of upper-income Americans will take hold
and be able to oppress.
III. CONCLUSION
The Federalist vision for American government has three prerequisites: the use of reason,
the representation of all interests, and influence of the popular will. The Constitution was
groundbreaking in its ability to blend these three contradictory interests. There is constant tension
235
Id. at 227.
236
Id. at 222.
237
Id. at 192.
238
Id.
http://scholarship.law.upenn.edu/jlasc/vol18/iss3/2
30
Neidhardt: The Federalist View of Right-to-Work Laws
NEIDHARDT - FINAL.DOCX (DO NOT DELETE)
2015]
THE FEDERALIST VIEW OF RIGHT-TO-WORK LAWS
5/13/15 11:42 AM
281
between giving power to the people, and aiming for reasoned discussion by knowledgeable
individuals.
Today, each government official represents more individuals than ever before. Yet we
still rely on the same Constitution to ascertain the popular will. The Federalists could not have
foreseen the upheaval caused by the Industrial Revolution, or the changes of the twentieth
century. But we have come up with a way of accomplishing those three Federalist goals without
changing our Constitution’s structure: using large organizations to represent the needs of
Americans in our government.
In this Article, I take labor unions as one example of a large representative organization.
Labor unions, and other similar organizations, provide the structural support necessary to organize
lower- and middle-class Americans. This organizational benefit is critical to counteract the
relative ease with which high-income and business interests are able to organize. Labor unions
provide the simple ability to ask individuals to participate in their government. Whether that
question is asked is often dispositive of whether a person will indeed have the ability to have her
voice heard. But right-to-work laws work against this ability, because they undermine the
structural benefit of unions, which is to solve a collective action problem.
Representative organizations achieve the Federalist vision by allowing massive numbers
of individuals to delegate their representation to a small number of people who can become
experts and participate in a reasoned discussion at the table of government. Given that the size of
government has not increased at the same pace as the size of the nation, this is the only way for
many individuals to ever have their voices heard.
Published by Penn Law: Legal Scholarship Repository, 2015
31